Aspects of burial law from Brady’s funeral judgment

Some issues raised in the recent judgment

On 13 October, the High Court handed down the judgment Oldham Metropolitan Borough Council & Ors v Robin Makin & Ors [2017] EWHC Case No: HC-2017-002064 (Ch) concerning the arrangements for the disposal of the body of Ian Stewart-Brady, formerly Ian Brady (the “deceased”), one of the infamous Moors murderers. We posted some initial comments based upon the Court’s judgment and the Summary which it produced “to assist in understanding the Court’s decision”. 

In view of the necessary confidentiality of the information concerning the arrangements for the disposal of Brady’s body, parts of the published judgment had been redacted. However after the cremation and disposal of the ashes at sea, on 3 November 2017 the High Court released the unredacted version of the judgment, Oldham Metropolitan Borough Council & Ors v Robin Makin & Ors [2017] EWHC 2543 (Ch)paragraph 88 of which includes the Court’s directions as to the disposal of Brady’s body. The judgment raises a number of issues relating to the law of burial which are of more general application, and these are considered below.

Background

The updated version of our post Scattering Ian Brady’s ashes summarized the initial coroner’s hearing on 16 May 2017 following the death of Ian Brady (a.k.a. Ian Stewart-Brady).  Whilst media headlines at the time focussed on the disposal of Brady’s ashes, Senior Coroner Christopher Sumner requested assurances on three issues, further to a request to release his body:

  • the person who asked to take over responsibility for that funeral has a funeral director willing to deal with the funeral;
  • he has a crematorium willing and able to cremate Mr Stewart-Brady’s body; and
  • when Mr Stewart-Brady is cremated his ashes will not be scattered on Saddleworth Moor.

The sequence of events between the coroner’s hearing and the High Court judgment is summarized in paragraphs 7 to 10 of the judgment and the facts of the case in paragraphs 13 to 39.

High Court hearing

Sir Geoffrey Vos, Chancellor of the High Court, prefaced his ruling with the comments [sections originally redacted in square parentheses]:

“[3]. It will make this judgment more intelligible if I set out immediately the provisions of Sections 46 and 116. Section 46(1) provides that:

“[i]t shall be the duty of a local authority to cause to be buried or cremated the body of any person who has died or been found dead in their area, in any case where it appears to the authority that no suitable arrangements for the disposal of the body have been or are being made otherwise than by the authority”. In this case, the relevant local authority is Sefton [Sefton Metropolitan Borough Council], which I re-joined as a party to these proceedings on the second day of the hearing in circumstances I shall shortly describe.

“[4]. Section 116 provides that:-

“(1) If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.

(2) Any grant of administration under this section may be limited in any way the court thinks fit.”

“[5]. As things turned out at the hearing, the claimants sought an order that [Ms Carolyn Wilkins OBE (“Ms Wilkins”), chief executive of Oldham and/or Ms Sandra Stewart (“Ms Stewart”), executive director for governance, resources and pensions of Tameside], be appointed as individual administrators for the limited purpose mentioned in place of Oldham and/or Tameside themselves. This change arose as a result of a contention made on behalf of the first defendant that letters of administration cannot be granted to bodies corporate like Oldham and Tameside unless they are trust corporations (which they are not). In the circumstances, I will not need to deal with this technical argument, since it is common ground that I can, at least in theory, make a grant of letters of administration to [Ms Wilkins and/or Ms Stewart].

The headline points from the judgment include:

  • probate had not been  sought; Brady’s solicitor did not intend to do so until after the disposal of the body, because the will would thereby become a public document. The court has not been shown a copy of the deceased’s will [13].
  • “the executor’s duty is actually, in modern times at least, to provide a ‘decent disposal, rather than any kind of funeral”, [35].
  • “…the public interest demanded that these proceedings were heard in public. We operate these courts openly. We do not operate a system of secret justice in which any litigant can demand for his own reasons that his case is determined away from the sterilising glare of the public eye”, [63].
  • Only a small part of the hearing was in private and only small sections of the judgment have been redacted [Summary].
  • “The deceased’s wishes are relevant, but they do not outweigh the need to avoid justified public indignation and actual unrest”, [81].

Concluding his judgment, Sir Geoffrey Vos said [emphasis added]:

“[83]. In these circumstances and for the reasons I have given, I do not think that Mr Makin can be entrusted with the ashes for disposal…

“[84]. I have, therefore, determined that in the extremely unusual circumstances of this case, I should direct precisely how the deceased’s body is to be disposed of. I shall even need to decide whether music can be played during the cremation.

“[85]. For the reasons I have already given, I am entirely satisfied that it would be dangerous and inappropriate to allow Mr Makin to dispose of the deceased’s ashes. It is unfortunate that Sefton is no longer able to arrange their disposal, but instead [Ms Stewart] has said that she will do so, and I am satisfied that that is the best proposal available.

“[86]. As to the playing of the fifth movement of the Symphony during the cremation, I need only quote the description of that movement from Wikipedia for it to be seen how inappropriate it would be…

“[87]. I have no difficulty in understanding how legitimate offence would be caused to the families of the deceased’s victims once it became known that this movement had been played at his cremation. I decline to permit it. It was not suggested by Mr Makin that the deceased had requested any other music to be played or any other ceremony to be performed, and in those circumstances, I propose to direct that there be no music and no ceremony.

“[88]. I will therefore direct under Section 116 that [Ms Stewart] shall be appointed as administrator of the estate of the deceased for the limited purpose of disposing of the body of the deceased in the following manner. I also direct under the inherent jurisdiction of the court and under Section 116 that [Ms Stewart] as administrator shall be responsible for ensuring that the body of the deceased is disposed of in the following manner: [

i) The deceased’s body shall be cremated by Sefton at Southport municipal crematorium no later than Friday 27th October 2017 (the “cremation”).
ii) The cremation shall take place in a spare cremator out of normal crematorium hours.
iii) No music shall be played during the cremation and there shall be no ceremony before during or after the cremation.
iv) There shall be no flowers present and no photography undertaken before during or after the cremation.
v) The only persons permitted to attend the cremation shall be Mr Makin, Ms Stewart, and the Senior Registrar of Bereavement Services of Tameside, in addition to crematorium staff and police.
vi) The ashes of the deceased (the “ashes”) will be entrusted to Ms Stewart for disposal at sea as soon as reasonably possible after the cremation, and in any event within 7 days thereof.
vii) The only persons present at the disposal of the ashes are to be Ms Stewart, the Senior Registrar of Bereavement Services of Tameside, in addition to necessary staff and police.]

Comment

Whilst not a “landmark” ruling associated with the development of the law in this area, the judgment of the Court of Appeal was nevertheless unusual in its use of existing provisions within the Senior Courts Act 1981 to direct precisely how the deceased’s body was to be disposed of, including whether music could be played during the cremation. In so doing, Sir Geoffrey Vos placed the court at the head of the quasi-hierarchy of rights relating to the treatment of a body prior to its final disposal, discussed in our earlier post. Incidentally, by specifying only one piece of music for his cremation, Brady was (posthumously) hoisted with his own petard, since the judge ruled that no alternative was then possible.

Again, the distinction in the executor’s duty between providing a “decent disposal” rather than “any kind of funeral” is not new, but it is nevertheless a welcome restatement of this requirement. A similar approach is evident in the 1983 Code of Canon Law, which under Canon 1184 §1 certain categories of person must be deprived of ecclesiastical funerals, unless they gave some signs of repentance before death. Furthermore, under Canon 1185, such persons are also denied a funeral Mass.

On the technical issue of burial at sea, in England this is regulated by the Marine Management Organization (MMO) whose web site identifies three locations at which it is permitted: off The Needles, Isle of Wight; between Hastings and Newhaven; off Tynemouth, North Tyneside. However, the site indicates that it is possible to propose a new site when an application is made; in these cases is necessary to supply coordinates and evidence to demonstrate that the site is suitable for burials at sea. Presumably this was the case with Brady’s remains.

The MMO further states that a licence or permission is not required to scatter ashes at sea following a cremation. Brady’s remains were not scattered broadcast but placed in a weighted biodegradable urn, said to be of Himalayan salt which was designed to dissolve in water within a short time. These is no indication of whether a licence was required for this procedure.

It has been reported that Myra Hindley, the other Moors Murderer who was said in her later years to be a devout Roman Catholic, had requested Albinoni’s Adagio for Strings to be played at her funeral and for a Mass for the repose of her soul to be offered. However, no details were released other than the service at the crematorium was service was conducted by a Catholic priest Father Michael Teader;  her ashes were said to be handed to a representative from the prison service for disposal at a private location in accordance with her family’s wishes.

In What the debate about Ian Brady’s body tells us about rights after death, Imogen Jones, Associate Professor in Law, University of Leeds, gives a broader consideration of the issues raised in the judgment. The issue of respecting the wishes of the deceased is also of relevance in relation to the current issue of organ donation, and will be covered in a future post.

Cite this article as: David Pocklington, "Aspects of burial law from Brady’s funeral judgment" in Law & Religion UK, 8 November 2017, http://www.lawandreligionuk.com/2017/11/08/aspects-of-burial-law-from-bradys-funeral-judgment/

5 thoughts on “Aspects of burial law from Brady’s funeral judgment

  1. I haven’t refreshed my mind on a range of relevant legal principles. I simply point out that it cannot be true to say, that executors (or relatives or friends) normally have a duty to arrange a decent “disposal”, unless that legal term has been given a legal meaning, of which I am unaware.

    This raises the question of whether “disposal” includes donations for medical education and preservation in any circumstances, medical or not. The latter could simply mean retaining a body and doing very little with it. That seems to have been the case when Robert Lenkiewicz retained the body of Edwin MacKenzie and his remains were judged to be property of the former’s estate on his death. By contrast, the body of Alan Billis underwent very technical preservation procedures, for which York University won a BAFTA..

    Prosecutions in recent times have referred to duty to bury but as far as I can see, the true crime, if accurately defined, is to neglect or abandon a body.

    Is that not so?

  2. The position on disposal was summarized by Sir Geoffrey Voss as:

    9. Mr Makin, as the deceased’s designated executor, correctly claims that he is primarily entitled to dispose of the deceased’s remains. As Hale J put the matter in Buchanan v. Milton [1999] 2 FLR 844 at pages 845-6:

    “There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 ChD 659; Rees v Hughes [1946] KB 517).

    An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 ChD 468, 472; Dobson v North Tyneside Health Authority and Another [1997] 1 FLR 598, 602, obiter) even before the grant of probate.

    Where there is no executor, that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson)”.

    • Judges in various cases appear to be of the impression that when there is no Will/Executor it, will be necessary for the next of kin to apply for letters of administration (certificate of administration) in order to take possession of a body and/or deal with the estate.

      That is very rare, when done only for the purpose of collecting and making arrangements for a body. Indeed, I cannot think of a reason for doing so, other than for resolving disputes between those who have equal standing in law.

      My adult son had little in his estate and had not made a Will. Like many people I did not need to apply for letters of administration to recover his body from the coroner and organise the funeral (with or without employing an undertaker) and tend to the estate, albeit very small. The coroner had issued a burial authorisation (burial order) and all that I needed to release what little money my son had in the bank and settle his affairs, was an interim death certificate. The same happened to my brother when he lost his youngest adult son and my father when he lost his wife, my mother. None of us needed to apply for a grant of probate or letters of administration.

      In terms of arranging a funeral it would not make sense to be forced to wait for letters of administration to arrive. I understand that the process could take approx. 4-6 weeks, which obviously takes far too long. Many people find themselves in this position and they can claim a lawful right to take possession of the body without delay, i.e. when there is no executor or formally appointed administrator.

      There is no shortage of case law on the point, such as Larson v. Chase 14 LRA 85 (1891).

      That states, that when no Will has been made, principles of English common law, give the nearest relative an automatic right to take possession of the body.

      R v Scott 1841 was based on the ancient principle that the rights and responsibilities of the executor, trump those of the householder, being the person responsible for the property on which a person dies, e.g. in a hospital, hospice, hotel, jail or anyone’s home.

      That case is different to previous cases in at least two ways.
      Firstly, the judges met urgently, because they were astonished by the persistence of a public servant, in obstructing the collection of a body.
      Secondly, that public servant was later prosecuted and found guilty, for imposing a precondition on the collection of the body.

      In that case the precondition was the insistence that a debt first be paid, (cf. the illegal practice of arresting a corpse because of a debt).
      It could have been any precondition, such as those increasingly being imposed by NHS hospitals, where staff are either oblivious of this criminal law offence or are prepared to risk being in breach of it on a grand scale. I refer to demands to produce burial or cremation authorisations, which have no legal relevance to the immediate right to collect a body from any place. Only a coroner or procurator fiscal with legitimate control can prevent the collection of a body whilst cause of death is under investigation.

      Mr. Justice Maule who presided over the prosecution of Scott in 1842, concluded that there can be no Crown immunity for public officials. The indictment states that the body had been criminally detained for a “long time”, i.e. between a Saturday and the following Wednesday. That is as long as some NHS hospitals illicitly detain bodies, especially over bank holidays, because of the preconditions which some hospitals are imposing.

      In both the 1975 and 2010 editions of Halsbury’s Laws of England, it is stated that, “it is an offence to detain a body, for instance upon a claim for fees for a debt and to refuse to deliver it to the executors for burial”.
      If you take the words “for instance” out of the sentence, then Halsburys would be saying it’s only a criminal offence to retain a body for a debt. By inserting the words “for instance”, Halsburys is flagging up the fact that there must be other preconditions. If this was an error, it would not have been carried over into the 2010 edition. This point is likely to go back to earlier editions.

      It is my understanding that any method of “disposal” is lawful, if it has never been proscribed and there is no breach of other legal principles, such as offences against public decency.

      There is nothing in law known to me, which dictates that it must take place within any given length of time. Ancient and modern court cases refer to a “duty to bury” but if that were true, cremation and disposing of bodies at sea would be illegal, as would keeping them in museums and so on.

      Intervention would be appropriate, in any case in which a body has effectively been neglected or abandoned. Perhaps that is what Justice Hale meant in the judgement on Buchanan v Milton (1999), i.e. “there is a duty at common law to arrange for its proper disposal”. Points like “proper disposal” are often left unclear, leaving them open to interpretation and doubt.

      I contend that this matter raises both civil and criminal issues.

  3. There can be no doubt as to:-

    (a) who can immediately claim “lawful control” over a body and take “lawful possession” of it;

    (b) the fact that it is a criminal offence, to obstruct their rights by imposing avoidable delays. The most usual which has emerged in recent years, is demands by some NHS hospitals to go away and return with one or more legally irrelevant documents, such as burial or cremation authorisations, before bodies can be collected. That breaches good practice as formerly defined in national policy for at least 37 years. It also causes considerable torment, sometimes over a number of days, contrary to the NHS legal duty to protect and promote health, including emotional and social wellbeing;

    (c) the difference between a body simply awaiting “disposal” and another transformed by skill into property which can be owned;

    (d) there being no “duty to bury” everyone after they have died.

    Statute law gives an imprecise definition of “disposal”, i.e. by burial, cremation or any other means.

    As I mentioned on this blog a few years ago, case law proves that the word “any” is limited in connection with places for which exhumation licences can and cannot be validly issued.

    The word “any” must also be limited in connection with “disposal”. For example, the Sunday Sport reported in June 2008 that in the Liverpool area, (coincidentally where Ian Brady’s cremation ashes were taken out to sea), the police had charged John Bryant with having left his wife’s body in a recycling bin for collection by the local authority. When I sought proof three months later, the police, public services and a local newspaper, knew nothing about the supposed event. The Sunday Sport according to Wikipedia, “prints plainly ludicrous stories”.

    If that did happen or anything like it were to happen, I am confident that it would amount to the criminal abandonment of a body.

    The question remains, as to whether there is a grey area?

    For example, does “disposal” include deliberately doing nothing more, than leaving a body in a warm place to dehydrate and mummify? That would not include anyone having to use their skills, to transform it into property. A case in point as previously mentioned, is the action or lack of it, taken by Robert Lenkiewicz.

    When anything else is lawfully disposed of, it means we no longer have it and are no longer responsible for it. In almost all circumstances, bodies which are buried will never be seen again by relatives. With cremations, the transformation to ash usually happens on one day. Presumably the same can be said of resomations and promessions.

    By contrast, can it be said without any shadow of doubt, that all forms of preservation are “disposals”, especially when the processes involved are slow and bodies can be seen at all times? Put another way, is a “disposal” a ‘sudden’ event or can it also includes a slow an imperceptible process? If so, at what stage has the body actually been “disposed” of?

    Important Note.

    I have placed “disposal” within quotation marks because it is a legal but deeply insensitive if not offensive concept, in the context of those coping with devastating bereavements. In some local authorities, waste disposal staff are responsible for arranging funerals, when no-one else does so. That is deeply offensive. Do they have the same legal duty to provide sound information to service users, as social services staff who in other local authorities, do the same work? Do they mention that the law stipulates that bereaved friends and relatives and not local authority staff are legally in charge of burials, when arranged and paid for by local authorities? The same can be said in terms of cremations, if applying the spirit of the law and modern health and welfare principles on the importance of empowerment. There may be rare exceptions such as Glos. County Council and Re. K (Fam Div) 24.03.2017, where the legal powers of the parents were removed.

  4. There is another ranking order which needs to be considered, whether or not a Will exists and regardless of the rules of intestacy.

    Anyone claiming to be nothing more than an executor, is not qualified to register the death and has no legal right in that sole capacity, to be the first person to be given the “green form” – see below.

    In England & Wales, the nearest relative present at the death or if there is no such relative, any other present at the death, must register the death which occurs in any “house”, (S.16(3)(a), Births & Deaths Registration Act 1953). House is taken to include a hospital, hospice etc..

    Only if no such relatives exist, must the remaining ranking order be followed. An executor has no legal status in that hierarchy. They may be at the bottom of the list, if they happen to be the “person” who is making arrangements for the “disposal”. That could be anyone and often isn’t an executor.

    Since at least 1953, registration law has given primacy to the nearest relative. The duty is automatic from the very moment of death. Consequently, the law has been written in such a way, that registrars are more likely to give “green forms” to nearest relatives. Without those forms, neither burials nor cremations can go ahead.

    Having been given the “green form” and mindful of the automatic common law right to take possession of the body and rules of intestacy, it would be inconsistent to assume, that if the nearest relative has not already collected the body, they would have no legal right to do so, unless and until appointed as administrator. As Teresa Evans has mentioned, many people have no need to apply for grants of administration.

    In most if not all circumstances, there can be no doubt as to who the nearest relatives are. By contrast, if copies of outdated Wills are inadvertently acted upon, the wrong people could act as executors, in the first days, weeks or longer. In other words, it cannot be known for sure, who some executors are, until grants of probate have been issued, weeks after deaths.

    Risks are very remote, of anyone falsely believing they are the nearest relative.

    NOTE

    Some registrars appear to be ignoring the legally imposed ranking order. If they have no powers to do so, they are acting in breach of the law. The question then arises, as to whether the documents which they then issue, are legally valid?

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